Supreme Court of India a new paved way for social reform with two landmark judgements. First was declaring the practice of ‘triple-talaq’ unconstitutional and second ruled privacy as a fundamental right for every person in India including freedom of sexual orientation. We need to answer why we rely on judiciary to fix social issues plaguing the society?
First in the matter of ‘triple-talaq’ or the practice where a Muslim man divorce his wife by uttering the word ‘talaq’ three times. Sunni Muslims worldwide have followed this practice in some shape or form. However, as many as 22 Muslim countries from Pakistan to Turkey have banned the practice. The All India Muslim Personal Law Board (AIMPLB), a non-governmental organization believes that this is government meddling in the personal laws of the Muslim community. For long the government in India has succumbed to the pressure and not acted in the best interest of the citizens. The passage of The Muslim Women (Protection of Rights on Divorce) Act 1986 is a strong evidence of that. The judgement against ‘triple-talaq’ not only removes the threat of divorce for Muslim women but also takes a major step in gender and religious equality. It also reignited the debate about a uniform civil code and retraction of religion based personal laws.
Academics, scholars and politicians have made numerous arguments in favor of keeping the personal laws
- Inconsistencies in Hindu Marriage Act and Inheritance laws as well as special considerations bestowed for communities based on geography and castes.
- Special agreements in Northeast states including article 371 (A) that guarantee that no Act of Parliament that interfered with Naga customary laws would be implemented in Nagaland unless the state Assembly passed a resolution allowing it.
- Motivations for uniform civil code are politically biased
On the face of it, it does seem that UCC is a progressive demand and can enforce nationhood but India is a country of diversity and it may be simple to think that a common language, a common song or common civil code can be reality in near future.
In the case of freedom judgement, the court ruling not only upholds the rights of personal sexual orientation but also asserts that government should protect the identity of every person without discrimination. However, homosexuality remains a crime under section 377 of Indian Penal Code. In 2013 Supreme Court of India reversed 2009 Delhi High Court decision that deemed the section 377 unconstitutional. Although it was a step backwards, Supreme Court has now agreed to review the 2013 own decision through the curative petition process.
The judgement about freedom may pave the way of granting equal rights to every citizen and do away with of age-old laws about functioning of society. It is important to note that the attempts to decriminalize homosexuality have failed in the Indian parliament.
All this shows that we are relying on the judiciary to do social reform one ruling at a time. As a society can’t we agree on the basic rights of human being and produce the rules and laws that do not trample on the rights? Why the elected legislators and the ballot box don’t have the strength to carry out reforms that are the need of the current time?
As much as we agree that it is hard to bring reform to the diverse and complicated society in India, it is a shame that no one has shown the strength to stand against the established norms. In my opinion it is failure of a democratic society.